As a child, my parents blessed my sister and me by taking us all over the world. On a European vacation, I met some friendly people from France. As most Europeans do, they spoke some English. Like most Americans, I spoke no French. When they asked where I was from, I told them Texas. Upon this response, they put their hands in the air like guns and said, “Bang bang, cowboys, Texas.” I chuckled and agreed while saying, “Yes, Texas.”
My meeting with the French couple happened in the ‘80s, and things have changed quite a bit since then. I remember rifles and shotguns in back windows. I remember my mom teaching me how to use my first gun, a Browning Auto .22 rifle. My friends and I used to walk down the street with our .22s. Not only have opinions about firearms changed and advocates become more vocal, but the laws regarding possessing firearms have also changed around the country and in Texas.
The physical response by the French couple was not a rarity. Most people I meet throughout the U.S. and around the world think of Texas as a rambunctious state. They still think Texas is the Wild West full of cowboys, guns, and all the trappings of such thoughts and beliefs. Surprisingly, Texas, unlike numerous other states, has quite a few laws regarding weapons, firearms, and, more specifically, stricter laws when it comes to handguns.
A. Firearm v. Handgun – Basic Definitions
Most of us regularly get asked questions like:
“Can I have a gun in my car?”
“Can I have a gun if (this)?”
“Can I have a gun if (that)?”
“What happens if…?”
Possession of firearms is often fact-specific to what type of firearm, where, and how. Let’s start with the different types of firearms and how the law is fairly specific as applied to each.
What is a firearm? The Texas Penal Code defines a firearm as:
(3) Firearm means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition
This definition generally follows the federal definition found in 18 U.S.C. § 921(a)(3). However, the federal definition also includes a firearm to be the “frame or receiver, a silencer, or a destructive device.” The frame or receiver provides housing for the hammer, bolt or breechblock, and firing mechanism, and is usually threaded at its forward portion to receive the barrel.
Well, what is a handgun? Federal and state laws are very similar here, as well. The Texas Penal Code defines a handgun as any firearm designed, made, or adapted to be fired with one hand.
With these basic definitions, we can delve into some of the intricacies of Texas gun laws.
B. Law on Handguns
Through the years, I have seen a lot of bad advice on social media regarding handguns. Because of this, I wanted to break down handguns or pistols (collectively herein called “handguns”) and the laws controlling them.
Almost everyone can picture what the handgun looks like when they think of the movie scene when Dirty Harry asks, “Do you feel lucky?” It’s the nickel-plated Smith and Wesson .44 revolver. Or, some may always remember the role of the Colt .45 seen in almost every war movie, or the Beretta 92 seen in Die Hard, The Bourne Series, C.S.I., The Sopranos, and more. A handgun is the gun you shape your hand into when you say “Bang,” as the French couple did. The common misconception about Texas and guns is you can get a gun and carry wherever you want (as long as you’re not a felon). However, most lawyers and those who are familiar with firearms know that is wrong.
“Constitutional carry” means the United States Constitution says you can carry a handgun how you want and not need a permit. Even though many have argued for and attempted to sway the legislature, Texas is still not a constitutional-carry state.
In Texas, to carry a handgun on one’s person, one must obtain an “LTC” or license to carry. To be eligible for an LTC, a person cannot be: (1) under 21 years of age; (2) a convicted felon; (3) a fugitive; (4) delinquent on child support; (5) and a few other things. If eligible, a person has to: (1) provide fingerprints; (2) a passport picture; (3) undergo a background check; (4) complete an application; (5) take a class; (6) pass a written test; (7) and pass a practical shooting test. Although it sounds difficult, honestly, it is not.
C. Laws If You Do Not Have an LTC
First, let’s discuss laws for a handgun for someone without a valid LTC. If someone does not have an LTC, they can possess a handgun: (1) on or about their person; (2) on premises they own or control; and (3) in their motor vehicle or watercraft. They can also possess a handgun while headed to or from the premises, to their motor vehicle, or vice versa. However, since the person in this example does not have an LTC, any handgun must be concealed while doing so. This means the handgun cannot be recklessly or intentionally in plain sight. Also, there are no restrictions on the gun being loaded or where it has to be. The handgun can be on the front seat of the vehicle and covered by a handkerchief. The handgun can be in their pocket, the glove box, or any other place as long as it is concealed.
What are “premises” as referred to above? Under Texas law, it means real property. It also means a motor vehicle designed to live in or a trailer with temporary living quarters inside (both are recreational vehicles). Such items are travel trailers, motor homes, a horse trailer with living quarters, a camper, etc.
Are there times when someone without an LTC cannot have a handgun in their motor vehicle or watercraft? The short answer is yes. If someone does not have an LTC, they can only have a handgun in their motor vehicle or watercraft if it is concealed. They can still face criminal charges of unlawfully carrying a weapon (UCW) if: (1) they are engaged in any criminal activity other than a class-C traffic or boating violation; (2) are otherwise prohibited from possessing it; (3) or are a member of a criminal street gang. The offense usually occurs or accompanies an arrest for driving while intoxicated, possession of marijuana or other prohibited substance, and reckless driving.
D. Unlawfully Carrying a Weapon
UCW with a handgun in Texas is a class-A misdemeanor under Texas Penal Code §46.02 with a possible range of punishment up to one year in county jail and up to a $4,000 fine. This punishment is usually more significant than the range associated with the underlying offense. Additionally, if someone does not have an LTC and carries a handgun into an establishment with a permit to sell alcoholic beverages, it is a third-degree felony with a range of punishment up to 10 years in prison and up to a $10,000 fine.
E. LTC Laws
Once a person gets their LTC, they can carry their handgun in more places than just their motor vehicle and other “premises.” However, there are still limits to the LTC.
Let’s begin with the LTC in a motor vehicle. Remember, a person without an LTC can have a handgun in their motor vehicle or watercraft, but it must be concealed. If someone has an LTC, any handgun must still be concealed unless it is in a shoulder or belt holster. If the handgun is in a shoulder or belt holster, then the handgun can be in plain view.
When I was a prosecutor, and the open-carry law came out, the funny discussion at the TDCAA Legislative update was, “What is a holster?” Well, nowhere in the statute is holster defined. Some funny memes circulated, including a gun in a sandal stuck in someone’s belt. In essence, a holster can be anything a person would place a handgun in. And, as long as the handgun is in a “holster,” the handgun can be anywhere in the vehicle. The handgun can be in a “holster” on the dashboard, the seat, on your waist, anywhere. However, whether someone would get arrested or charged could vary depending on the jurisdiction, an overzealous prosecutor, or an exuberant officer. This is one of those can’t-beat-the-ride scenario. Will it stick? Who knows. Since there is no statutory definition of a “shoulder or belt holster,” a jury somewhere could decide a sandal is not a holster.
Even with an LTC, there are places a handgun can’t be brought unless the licensee falls into an excepted group. Also, there are statutes allowing businesses and other public or private entities to prohibit a licensee from coming on the premises with a handgun.
Texas Penal Code §30.06 addresses the offense of trespass by a licensee with a concealed handgun. This offense requires notice to a licensee when the entity wishes to prohibit their entry with concealed handguns. Commonly referred to as “30.06 signs,” these have to meet every requirement outlined in Texas Penal Code §30.06. This section has a lot of things to unpack and deals explicitly with a licensee trespassing on specific properties prohibiting carrying a handgun by licensees. Section 30.06 also lays out the defenses licensees have if they do go on prohibited premises. If an entity has communicated in written form with “30.06” signs they’re prohibiting a licensee carrying a concealed handgun, the licensee shall not enter with a concealed handgun. Texas Penal Code §30.07 has all the same language of Section 30.06, but Section 30.07 relates to a licensee openly carrying a handgun on an entity’s premises. All warnings must be explicitly posted and follow Section 30.07 guidelines. If a licensee comes on the property in violation of either Section 30.06 or 30.07, it is a class-C offense with up to a $200 fine; it is a class-A misdemeanor if the licensee is told to leave and refuses to leave.
As defense attorneys, it is imperative to know the defenses available. There are myriad defenses to both Section 30.06 and Section 30.07, the biggest being if the person is personally told to leave, and he promptly does. Other defenses include being an owner, tenant, or guest of either an owner or tenant of a condominium, a rental unit, a manufactured home lot, and the individual possesses the handgun in the respective premises or is directly in transit to or from their motor vehicle or premises. Another defense is if the licensee is a volunteer E.M.S.
F. LTC and College Campuses
If not prohibited by some other law, anytime a licensee is in a public place, and the licensee intentionally displays the handgun in plain view of another, it is a violation of the law if it is not in a holster. Texas Penal Code §46.035(a-1) through (a-3) specifically addresses a licensee’s possession on institutions of higher education. While on the premises of an institution of higher education or the public or private driveway, garage, or parking lot of an institution of higher education, a licensee isn’t supposed to “flash” the handgun in plain view of another person, even if the handgun is in a holster. If an institution of higher education has established rules regarding licensees where a school-sponsored activity is taking place, and the institution provides notice in compliance with §30.06, a licensee cannot carry a handgun, holstered or not, on the grounds or building or in a vehicle of the institution. Additionally, a licensee cannot carry a concealed handgun on a portion of premises located on a campus of an institution of higher education if the institution provides notice complying with §30.06.
All the offenses in the previous paragraph are punishable as a class-A misdemeanor, and they also share the same defense to prosecution. It is a defense if, at the time of the commission, the licensee displayed the handgun when the licensee would have been justified in using force or deadly force. Also, §46.035(a-1) through (a3) does not apply to a historical reenactment in compliance with the Texas Alcoholic Beverages Commission.
G. More Premise Limitations
There are quite a few other places a licensee is forbidden from carrying a handgun, whether concealed or not, even if it is in a holster. One of these places is a bar––not the bar part of a restaurant, but a full-fledged bar, which includes any establishment making 51 percent or more of its income from on-premises sale or service of alcoholic beverages for consumption. These locations usually have the big red “51%” signs posted at their entrance. Another prohibited place to carry while possessing a valid LTC is on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place unless the licensee is a participant in an event where the handgun is used. The prohibition also includes the premises of a correctional facility like a county or city jail or prison, a hospital or nursing facility (unless the carrier has written authorization), an amusement park, or the premises of a civil commitment facility. Licensees also cannot carry into an open meeting of a governmental entity subject to Chapter 551 of the Government Code, and the entity provided notice of the meeting. Of course, being intoxicated and carrying a handgun under the authority of being a licensed carrier is against the law, whether holstered or not. Most of these are a class-A misdemeanors unless the licensee is in a bar or correctional facility, in which case it is a third-degree felony.
Texas Penal Code §46.03, “Places Weapons Prohibited,” limits where both licensees and non-licensees can possess certain other weapons and firearms, including a handgun, unless the individual falls under a particular exception. One of these prohibited places is the (1) physical premises of a school or educational institution, any grounds or building where there is a school activity or a transportation vehicle unless the person has written authorization from the school or the person has a valid LTC and the premises are an institution of higher education. Prohibited places also include (2) polling places during an active election, (3) government court or office utilized by the court unless given written authorization, (4) a racetrack, (5) the secured area of an airport (more on this later), and (6) within 1,000 feet of a prison where an execution is happening and the person received notice of the prohibition. Under this statute, if the weapon possessed was a firearm, including a handgun, the offense is a third-degree felony.
H. Exceptions to the Law
Further defenses to Section 46.03 (1-4) are if the person were in the actual discharge of duties as a member of the armed forces, National Guard, or a guard employed by a penal institution or an officer of the court.
No one has a defense to carrying while intoxicated. The legislature sometimes passes two versions of a statute, and §46.035(h-1) is no different. However, the versions are not too dissimilar. A judicial officer, as defined in Texas Government Code §411.201, and his bailiff escorting him, have a defense to prosecution to all the offenses listed in the first paragraph of Section G above. Volunteer emergency service personnel also share this defense. The next group consists of a judge or justice of a federal court, active judicial officers as defined in Texas Government Code §411.201 (duplicated by both versions of (h-1), attorney general, United States attorney, district attorney, criminal district attorney, county attorney, or an assistant of one of those attorney categories. This select group has a defense to prosecution to enter or remain on any of the places listed in the first paragraph of Section G unless the premises is a correctional facility or commitment facility.
If a hospital, nursing facility, amusement park, or open meeting of a governmental entity fails to provide valid notice by placing signage meeting the requirements of Sections 30.06 or 30.07, then a licensee can carry a handgun into those establishments as there is no crime.
More defenses exist for those who are inside the secure area of an airport, as well. The first defense is for a person traveling while or discharging their duties as a member of the armed forces or National Guard or as a guard at a penal institution. This defense also includes someone traveling while or discharging their duty as a commissioned security guard who is either wearing a distinctive uniform and his weapon is in plain view or is not wearing a uniform, and his weapon is concealed.
There are also specific protections for individuals who check their firearms following federal guidelines before entering the secure area. Likewise, it is a defense if a licensee carrying a concealed handgun enters the screening checkpoint for a secured area and leaves immediately after completing the screening process after notification he possessed the handgun (think of a person who forgot about the handgun in their bag). An officer cannot arrest a licensee who enters the secure area unless the officer tells the person about the defenses, allows the licensee an opportunity to exit the screening area, and the person does not leave.
Many people still think Texas is the Wild West where everyone rides horses to work, and everyone carries a gun. However, this gun-loving state has plenty of rules. If you didn’t know before reading through this, now you do. There are even deeper and more specific caveats throughout the weapons code in Texas. Texas gun laws offer cross-sections between the Government Code, the Penal Code, and the Federal Code. So take your time when researching defenses to a particular gun charge. Whether representing a client in a gun case or owning one yourself, it is always best to know the law.